In Ontario, an Affidavit of Execution (Form 74.8) is a mandatory sworn statement by one of your Will’s witnesses. If you fail to attach this document to your original Will, your executor will face major delays and expensive legal hurdles during the probate process at the Superior Court of Justice.
When you finish drafting your Last Will and Testament, signing the paper feels like a massive relief. However, in Ontario, simply having two people watch you sign is not enough to make the probate process smooth. The court needs legal proof that those witnesses were actually there, that you were of sound mind, and that no one forced you to sign. This proof comes in the form of a vital document called the Affidavit of Execution. 📝
Whether you are finalizing your estate plan in Mississauga, Hamilton, or Brampton, this simple piece of paper is the difference between a swift estate administration and months of stressful legal delays. If you pass away 20 years from now, tracking down the people who witnessed your signature might be impossible. To ensure your family is not left scrambling, working with a reputable Ontario estate lawyer from our directory guarantees that Form 74.8 is executed perfectly on the very same day you sign your Will.
Step-by-Step Process for Executing Form 74.8 in Ontario
Do not leave this step for later. The Affidavit of Execution should be completed immediately after the ink dries on your Will.
Step 1: Sign the Will with Two Witnesses Present
Under the Succession Law Reform Act, you must sign your Will in the physical (or validly authorized virtual) presence of two adult witnesses. Neither of these witnesses can be a beneficiary named in the Will, nor can they be the spouse of a beneficiary. If they are, the gift to them becomes legally void. 👥
Step 2: Prepare Form 74.8
One of the two witnesses must step forward to swear the affidavit. Your lawyer will prepare Form 74.8 (Affidavit of Execution of Will or Codicil). This document states the witness’s name, confirms they saw you sign the Will on a specific date, and verifies that they and the other witness signed in your presence.
Step 3: Swear the Oath Before a Commissioner
The witness cannot just sign the form and walk away. They must sign Form 74.8 in front of a Commissioner for Taking Affidavits or a Notary Public in Ontario. The Commissioner will administer an oath, watch the witness sign, and then stamp and sign the document themselves. The original Will is then marked as “Exhibit A” and physically attached to the affidavit. 🗒
How Much Does it Cost in Ontario?
Getting the affidavit sorted out immediately is incredibly cheap compared to the thousands of dollars it costs to fix the error after you pass away. 💵
- Lawyer Packages: If a law firm drafts your Will (usually $500 CAD to $1,500 CAD), the execution of Form 74.8 is almost always included in the price.
- Standalone Notary Fees: If you wrote a DIY Will and just need the affidavit commissioned, a local notary will typically charge $40 CAD to $80 CAD.
- The Cost of Missing It: If you die without the affidavit, your executor must hire a lawyer to track down the witnesses or file a complex court motion to prove your signature. This easily costs $1,500 CAD to $3,000+ CAD in legal fees.
| Scenario at the Time of Probate | Result for Your Executor |
|---|---|
| Original Will + Signed Form 74.8 attached. | Smooth Probate. The court accepts the Will immediately. |
| No Affidavit, but the witness is found alive and cooperative. | Minor Delay. The executor must pay to have the witness swear the affidavit now. |
| No Affidavit, and both witnesses are dead or untraceable. | Major Legal Battle. The executor must hire a lawyer to submit secondary evidence of your handwriting to a judge. |
How Long Does the Process Take in 2026?
Executing the affidavit is an instantaneous process if done correctly, but ignoring it causes massive delays.
- Immediate Execution: Swearing the affidavit in a lawyer’s office takes exactly 5 minutes.
- Fixing it Later: If your executor has to hunt down an old witness using a private investigator, it can take 1 to 3 months.
- Court Delays: If a judge has to review a Will without an affidavit, it can add an extra 4 to 8 months to the Ontario probate backlog.
Frequently Asked Questions (FAQ)
Do I need an Affidavit of Execution for a handwritten (Holograph) Will?
No. In Ontario, a holograph Will (written entirely in your own handwriting and signed by you, with no witnesses) does not require Form 74.8. However, during probate, someone who knows your handwriting will have to swear a different affidavit confirming it is your writing.
Do both witnesses need to swear the affidavit?
No. Only one of the two witnesses needs to sign Form 74.8. The court relies on the sworn testimony of that single witness to validate the execution process for everyone involved.
Can the lawyer who drafted the Will be the Commissioner?
Yes! In fact, this is standard practice. Usually, a staff member (like a paralegal) acts as the witness, and the drafting lawyer acts as the Commissioner for Taking Affidavits to swear the document on the spot.
What if the original Affidavit gets separated from the Will?
The original Will should have a stamp on the back of the signature page linking it to the affidavit as “Exhibit A.” If the staples are removed or the documents are separated, the court may question whether the Will was tampered with, which can trigger an investigation.
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